Key Takeaways
- Getting a divorce in Australia is a relatively simple process, however when a marriage ends there are a number of issues that may need to be resolved like how your assets will be divided and parenting matters.
- The divorce system in Australia is no fault, meaning that you do not need to prove that your spouse is at fault just that there has been an irretrievable breakdown of the relationship.
- You can apply for a divorce after you’ve been separated for a minimum of 12 months and 1 day.
Getting a divorce in Australia
Choosing to end a marriage is not easy. It usually involves making a lot of decisions that can be emotional, tempestuous, and sometimes just difficult to understand.
While ending a relationship can be challenging, the actual divorce process is relatively straightforward. It’s the issues that arise as a consequence of divorce – child custody and the division of assets – that can be complicated and make the overall divorce and finalisation of the relationship difficult.
Whether you’re in the process of a divorce or considering one, it’s likely that you have questions about divorce, including your legal options, rights and responsibilities and in this piece, we’re going to answer the most common questions our divorce lawyers are asked about divorce in Australia.
How do you get divorced?
Getting a divorce in Australia is actually a relatively simple process. Divorces are granted by the Federal Circuit and Family Court of Australia.
If you meet the requirements of divorce (which we will discuss below) then you need to file a divorce application form. The divorce application form can be lodged with your spouse, known as a joint application for divorce, or you can lodge the form alone, which is known as a sole application for divorce.
The divorce application form will usually require additional documents, like a valid marriage certificate, and the form and documents will be uploaded to and lodged with the Commonwealth Courts Portal.
It’s important to note that the divorce is a formal and legal recognition of the dissolution of the marriage, and it is independent of property settlement and parenting matters. These matters must be resolved; however, this can be done either formally or informally and do not have to be finalised before you lodge your application for divorce.
You and your partner may come to an agreement about finances and/or children together or you may need the intervention of a legal professional or a court if you are unable to do so. If you do come to an agreement together, it can be informal which is not enforceable by the court. Or if you wish to formalise the agreement, you can apply for consent orders.
If you are unable to agree and require the help of the courts to create a property settlement, this must be applied for within 12 months of the divorce being approved.
When can you actually get divorced?
There are a few requirements that a couple must meet before they can apply for divorce in Australia. These include:
- At least one of member of the marriage needs to have been born in Australia, be an Australian citizen or have lived lawfully in Australia for at least 12 months;
- You need to be able to demonstrate that the marriage is valid;
- You have been separated for at least 12 months and one day. Some couples may live separately during this separation period, while others may remain living together but no longer as a couple, this is known as separated under the same roof.
- The marriage has irretrievably broken down which is usually shown through the 12 month separation.
If a couple has been married for less than 2 years, you will also be required to produce a certificate from a counsellor that confirms you have explored the possibility of reconciliation. In circumstances, such as when there has been domestic violence in the relationship, the applicant may be exempt from having to attend counselling.
What happens after a divorce application is lodged?
After you’ve filed your divorce papers, you’re probably wondering how you know whether you’re actually divorced.
Every divorce application is different. In some circumstances, you may be asked to provide further documents. If you’ve filed a sole application, you will be required to serve your spouse with the application for divorce in order to notify them of the divorce.
Your spouse must be served the documents either by hand or by post, however, you cannot serve the documents yourself. They must be served by a person over the age of 18. Learn more about what needs to be served and how here. They must be served with the application for divorce at least 28 days before the scheduled court hearing.
Every divorce will have a court hearing, and as part of your application, you will be provided with available dates for your hearing. These dates are the next available dates and cannot be brought forward.
You won’t have to attend your divorce hearing unless:
- you have filed a sole application and there is a child of the marriage aged under 18 years at the time of filing; or
- you have indicated that you wish to attend in the application; or
- either party has objected to the divorce being heard in the absence of the parties; or
- the respondent files a Response to divorce opposing the application.
If you do not attend the divorce hearing but your divorce is unable to be granted, you will be contacted by the court, otherwise, you can select to be notified by email when your divorce application is granted via the Commonwealth Courts Portal.
When your divorce is granted, it will be finalised one month and one day later. In some circumstances there may be an order that shortens that timeframe however, this is rare. When the divorce is finalised, you will be granted a divorce order, which is available for you to download in the Commonwealth Courts Portal.
What are the reasons you can get a divorce in Australia?
Under the Australian Family Law system, the divorce system is no-fault. This means that to divorce someone, you do not have to prove that your spouse is at fault, rather you just need to show that there has been an irretrievable breakdown of the relationship.
Prior to the Family Law Act 1975, to be able to get a divorce, you needed to prove that one of the spouses was at fault. Some of the possible “faults” or reasons for divorce were drunkenness, abuse, mental illness, insanity, and adultery.
The no-fault divorce system was created in an attempt to reduce the hostility that surrounded divorce and make it easier to resolve the other issues and matters that arise from ending a relationship, like property settlements and parenting matters.
Does it cost money to get divorced?
Yes. As part of the divorce process, you need to lodge the application through the Commonwealth Courts Portal which has a lodging fee. At the time of writing – February 2023 – this fee is $990 or $330 if you have a concession card. You can see the current fees here.
If you have decided to seek legal advice or have a lawyer lodge your divorce application on your behalf, then you will have additional costs to pay for their services too.
Do you have to go to court when you get divorced?
Not necessarily. As we touched on above, for the divorce application, there’s only certain circumstances where you will be required to attend court, such as if you file for a sole divorce application and you have children under 18.
You may need to attend court if you and your spouse are unable to come to an agreement regarding a property settlement or parenting arrangements.
How long does it take to get divorced?
Unfortunately, there is no fast-track process for divorce or no such thing as an immediate divorce.
Before you can apply for divorce you and your spouse must have been separated for at least 12 months. After you’ve lodged your application for divorce, you will likely have your divorce order granted within 3 to 4 months.
The separation period of 12 months allows time for each person to consider whether divorce is their final decision.
Does the divorce process differ throughout Australia?
The rules and processes for applying for a divorce are the same in every state and territory in Australia (except for Western Australia). Divorce is granted by the Federal Circuit and Family Court of Australia and applications for divorce are made through the Commonwealth Courts Portal. In Western Australia, the divorce is granted by the Family Court of Western Australia and is lodged via the eCourts Portal of Western Australia
What if my spouse doesn’t want a divorce?
In Australia, as long as you meet the requirements for divorce, you do not need to apply for divorce with your spouse. You can apply in a sole divorce application, and you do not need your spouse to sign the application to be able to lodge it.
The Court will grant a divorce order if they are satisfied that the marriage has broken down and there is no reasonable likelihood that you will get back together.
If you are applying for a divorce solely, then you will be required to serve them with the divorce application. This is to ensure that the other party is notified of the pending divorce application.
You may be required to attend court if you are applying solely.
If you’re considering applying for divorce solely, we recommend discussing your situation with a family lawyer. We can help you understand the process and even help you to complete it efficiently.
What are the most common reasons people get divorced in Australia?
For couples who decide to end their marriage, there’s usually not just one cause for this, but rather a few interrelated reasons. Some of the most commonly cited reasons for divorce include:
- a loss of connection or drifting apart
- infidelity
- trust issues
- communication problems
- financial problems
- abuse (physical and/or emotional)
- family interference
- physical or mental health issues
Relationships face an enormous amount of pressure from both internal and external factors. Some of these issues can be worked through while for others, it can make it difficult to maintain the relationship.
How does divorce work for same-sex couples in Australia?
The divorce process in Australia is the same for all couples, including same-sex couples. This means that as long as you meet the requirements for divorce that we touched on earlier, including that you’ve been separated for at least 12 months, then you are able to apply for divorce.
You can learn more about same-sex marriage and divorce here.
Can you get divorced in Australia if you were married overseas?
Even if you have been married overseas, if the marriage is recognised in Australia, then it is possible for a divorce to be granted in Australia. When a marriage takes place overseas, there are some legal variables that may need to be considered.
To be eligible to apply for divorce in Australia, you and/or your spouse must:
- be an Australian resident; or
- must be an Australian citizen, either by birth or by grant of citizenship; or
- have lived in Australia for at least 12 months before filing for the divorce; or
- must consider Australia to be your home and intend to live here indefinitely.
If you or your spouse meet one of these eligibility requirements, then you must also have been separated for at least 12 months and one day before making your application for divorce.
People who have been married overseas can apply for divorce either with a joint application or a sole application. If you apply for a divorce in a sole application, you will need to serve your spouse with the divorce application. If your spouse is living overseas, you will need to serve them with the divorce application at least 42 days before the court hearing. If there are difficulties locating your spouse, then you may be able to apply to the court to be exempt from this.
A marriage certificate will need to be presented as part of your application, however, if the marriage certificate is not in English, then it will need to be translated into English by a qualified translator. The translator will also need to sign an affidavit stating that they are a qualified translator and the translation is accurate.
If you have been married overseas, it’s best to seek legal advice before proceeding with your divorce application. A divorce lawyer can help you understand the requirements and ensure that you have provided everything that you need to.
What’s the difference between an annulment and a divorce?
A divorce and an annulment are legal decrees that spouses may be able to seek when they end their marriage.
A divorce is the termination of a valid marriage, while an annulment is the declaration that a marriage was not valid.
An annulment can only be granted in certain circumstances, such as:
- the marriage was not legally conducted; or
- if one of the parties to the marriage was not old enough to get married; or
- if one of the parties was forced into the marriage; or
- if either party was mentally incapable of being able to consent to the marriage; or
- if one party was already married at the time of this marriage; or
- if the person you married is a close relative.
An annulment is usually a more involved process than a divorce, and the court must investigate the circumstances of the marriage to ensure that an annulment can be granted. An annulment is also known as a declaration of nullity.
What needs to happen as part of the ending of the relationship?
When a marriage ends the former spouses must sort out some key areas of their lives, these being how they will divide their assets and, if they have children, how they will parent moving forward.
Property settlements
Property settlements or the division of assets, is often mistaken as a divorce, however, it is a consequence of deciding to end the marriage and essentially helps to end your financial relationship.
The assets that need to be considered when a relationship ends includes items and property owned by each person including houses, cars, investments, money, inheritance, superannuation and debts. These assets may have been owned by a spouse prior to entering the marriage and accumulated over the course of the relationship too.
Spouses do not have to have finalised their property settlement in order to get a divorce. A property settlement can be applied for by either spouse up until one year after the divorce order has been granted. It’s also possible to come to an agreement prior to applying for a divorce.
How the property and assets will be divided can be decided by the former spouses, and if they can come to an agreement, it can be informal or can be made formal by the courts through a consent order. If the spouses are unable to come to an agreement, then they may need to undergo mediation or attend a court hearing.
Even if you and your former spouse are able to come to an agreement, it is worth seeking legal advice. This way you can understand what you’re entitled to, your responsibilities, and ensure that you’ve considered everything.
Learn more about property settlements here.
Parenting matters
If a couple decides to separate and/or divorce and they have children under 18, then the parents must come to an agreement about how they will care for their children moving forward.
The law encourages parents to come to an agreement together about how they will care for their children and some of the things that need to be considered include:
- where the children will live
- who they will spend time with
- how they will be financially supported
- how relationships with each parent and extended families will be managed.
These are only some of the matters that need to be considered.
If parents can come to an agreement together, then this agreement can be informal, which is known as a parenting plan, or can made formal by the court through consent orders.
While it’s encouraged for parents to come to arrangements together, it’s not always possible nor safe to do so. If parents are unable to come to an agreement, then they must undergo family dispute resolution, and then if that doesn’t help to create an agreement, then you can apply to the court for parenting orders.
Learn more about parenting matters here.
Will I have to pay spousal maintenance if I get divorced?
The Family Law Act 1975 includes a responsibility for former spouses or de facto partners to financially support their former partner if that person is unable to reasonably support themselves. The amount of support provided will differ from couple to couple and is dependent on what the other party can afford to pay.
Spousal maintenance is not automatic nor is it guaranteed, rather a court will decide based on the needs of the applicant and the capacity of the other person to provide support. Some of the factors that can influence a court’s decision include:
- the applicant’s age;
- the applicant’s health;
- the applicant’s financial resources, including income and property;
- the applicant’s ability to work;
- the suitable standard of living for the applicant; and
- the respondent’s ability to provide any type of support.
If you are receiving spousal maintenance support, if you enter into a new de facto relationship the court will consider the financial relationship between you and your new partner to see whether ongoing spousal maintenance is required. If you enter into a new marriage, you will no longer be eligible for spousal maintenance from your former spouse.
You do not have to be divorced to apply for spousal maintenance, however, if you are divorced, you must apply for spousal maintenance within 12 months of the divorce order having taken affect.
Do you have to get a divorce if you end your marriage?
No. You are not legally obligated to get a divorce if you and your spouse decide to separate. Staying married can affect your obligations and rights in some financial matters which is why it’s important to seek legal advice.
If you plan on remarrying, then you must be divorced before you can do so.
Do I need a lawyer to get divorced?
No, you don’t need a lawyer to get divorced – you can complete the process online. People commonly choose to work with a lawyer because of the other issues that arise when a couple decides to divorce, i.e. property settlements and parenting matters.
Every circumstance is different and family law is complex, so understanding your rights and responsibilities is not always simple.
A divorce lawyer can guide you through the whole process, including the online application, and ensure that you understand your obligations and rights and that all documentation is provided, which can make the whole process a lot easier and more efficient.
Do you need a divorce lawyer?
If you’re located in Australia and considering a divorce but want legal advice, here at Unified Lawyers, we can help you.
Our team of family and divorce lawyers are highly qualified and experienced in helping couples through the divorce process and achieve outcomes that help them to move on with their lives.
Divorce can be an emotional and challenging time, but you do not have to go through it alone. We’re here to help you not matter where you are in Australia.
You can discuss your situation with us during a free, no obligation consultation. Book in to chat with us by calling us on 1300 667 461 or using the button below. You can talk to us over the phone or book a consultation at one of our offices in Sydney, Melbourne or Brisbane.
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